Paul Lomax - Two Point Oh

Following a rumour that circulated our offices that you can protect your trademark with Google for a fee, I wrote this brief guide to explain the latest thinking regarding trademarks and paid search, specifically Google Adwords.

The latest thinking is that an advert is deemed ‘legal’ if

• Keyword-triggered ad copy doesn’t display the trademarks. ie Heat could buy an ad word campaign using the key word Now Magazine but if the advert copy that they put up didn’t contain the words “Now magazine” it would be considered “legal”. We could still however complain to Google and try and get it taken down.
• Search results don’t display the trademarks even though the trademarks were included in the keyword metatags (or similar). This is if a competitor were to come up high in the natural search rankings for our trademark - but again if they don’t use our trademark in their copy - the ad would be considered legal. Again a course of action would be to complain to Google.

You cannot protect your trademark in Google for a fee, to my knowledge. Of course you could pay to advertise on that keyword yourself, paying more per click than the competitor (but please don’t - it just lines Google’s pockets!)

The first thing to do would be to complain to Google about any trademark infringement.

They may consider removing an advert which is triggered on a keyword but are not legally obliged to - however, they will almost definitely remove an advert which includes a trademark within the ad copy.

The exception to this is when an advert is triggered by non-trademarked terms even though the search query contains a trademarked item – for example if somebody has sponsored ‘magazine’ and appear when somebody searches for ‘now magazine’ then they probably won’t pull the ad.

NB: IANAL

The use of trademarks in keyword advertising has been the subject of much confusion, talk and litigation over the years, and Google’s stance on the matter hasn’t been particularly firm of late.

While still not completely resolved (particularly in the UK courts), the latest thinking from a US court ruling is quite clear and fairly sensible - but mostly in favour of advertisers and not trademark holders. As Eric Goldman summarises succinctly:

The use of keyword-triggered ads and keyword metatags cannot confuse consumers if the resulting ads/search results don’t display the plaintiff’s trademarks

So basically, the latest view is that an advert is deemed ‘legal’ if

• keyword-triggered ad copy doesn’t display the trademarks
• search results don’t display the trademarks even though the trademarks were included in the keyword metatags

You cannot protect your trademark in Google for a fee - be wary of anyone claiming to offer such a service. Of course you could pay to advertise on that keyword yourself, paying more per click than the competitor - but please don’t, it just lines Google’s pockets!

The first thing to do would be to complain to Google about any trademark infringement. They may consider removing an advert which is triggered on a keyword but are not legally obliged to. However they will almost definitely remove an advert which includes a trademark within the ad copy – except when an advert is triggered by non-trademarked terms even though the search query contains a trademarked item – for example if somebody has sponsored ‘shoes’ and appear when somebody searches for ‘nike shoes’ then they won’t pull the ad.